Do you know how long your cell phone company keeps records of whom you text, who calls you or what places you have traveled? Do you know how often cell phone companies turn over this information to the police and whether they first ask the police to get a warrant based on probable cause?
No, you don't. Not unless
you work for a cell phone company or a law enforcement agency with a
specialty in electronic surveillance. You aren't alone: Congress and the
courts have no idea either.
The little we do know is
worrisome. The companies are not legally required to turn over your
information simply because a police officer is curious about you. Yet
wireless carriers sell this information to police all the time.
Catherine Crump
As far as the cell phone companies are concerned, the less Americans know about it the better.
Whom you text and call
and where you go (tracked by your cell phone as long as it's on) can
reveal a great deal about you. Your calling patterns can show which
friends matter to you the most, and your travel patterns can reveal what
political and religious meetings you attend and what doctors you visit.
Over time, this data accumulates into a dossier portraying details of
your life so intimate that you may not have thought of them yourself. In
comparison with companies such as Facebook and Google, which collect,
store and use our information in one way or another, cell phone
companies are less transparent.
U.S. Rep. Edward Markey, co-chairman of the Congressional Bipartisan Privacy Caucus, recently requested
that cell phone companies disclose basic statistics on how our personal
data is shared with the government. Let's hope the companies are
forthcoming -- but don't hold your breath.
To be sure, there can be
legitimate reasons for law enforcement agents to track individuals'
movements. For example, when officers can demonstrate to a judge that
they have a good reason to believe that tracking will turn up evidence
of a crime. But with a surveillance technique this powerful, the public
has a strong interest in understanding how it is used to ensure that it
is not abused. While the details of individual investigations can
legitimately be kept secret, the public and our elected representatives
have a right to know the policies in general so their wisdom can be
debated.
Cell phone companies have
long concealed these facts, and they're fighting vigorously to keep it
that way. In California, the cell phone industry recently opposed a bill
that would have required companies to tell their customers how often
and under what circumstances they turn over location information to the
police, complaining that it would be "unduly burdensome."
What little has come to
light so far about the companies' practices does not paint a comforting
picture. Addressing a surveillance industry conference in 2009, Sprint's
electronic surveillance manager revealed
that the company had received so many requests for location data that
it set up a website where the police could conveniently access the
information from the comfort of their desks. In just a 13-month period,
he said, the company had provided law enforcement with 8 million
individual location data points. Other than Sprint, we do not have even
this type of basic information about the frequency of requests for any
of the other cell phone companies.
The poorly understood
relationship between cell phone companies and police raises grave
privacy concerns. Like the companies, law enforcement agencies have a
strong incentive to keep what is actually happening a secret, lest the
public find out and demand new legal protections. More than 10 years
ago, the Justice Department convinced the House of Representatives to
abandon legislation that would have required law enforcement agencies to
compile similar statistics, arguing that it would turn "crime fighters
into bookkeepers."
The excessive secrecy
has frustrated the ability of the American people to have an informed
debate on just how much information police should have access to without
judicial oversight or having to show probable cause. It has also
prevented Congress and the courts from effectively addressing these
intrusive surveillance powers. That is not how our system of government
is supposed to work.
It would not be
difficult for the carriers to tell customers how their data is
collected, stored and shared. In fact, an internal Justice Department
document from 2010, dislodged through a public records request by the
American Civil Liberties Union, showed the data retention policies of
all major carriers on a single piece of paper. The phone companies have
all created detailed handbooks for law enforcement agents describing
their policies and prices charged for surveillance assistance, a few
dated versions of which have seeped out onto the Internet.
If the cell phone
companies can provide this information to law enforcement agencies, they
can and should provide basic information about their sharing of data
with law enforcement to their customers, too. While law enforcement
sometimes argues that making members of the public aware that cell phone
companies can track them will make it more difficult to catch
criminals, it is too late in the day for that argument now that cell
phone tracking is a staple of television police procedurals.
Why aren't these
policies available on the companies' websites? With such information,
consumers could vote with their wallets and punish those companies that
don't protect privacy. Keeping their customers in the dark about
surveillance is better for business, it seems.
We pay the cell phone
companies to provide us with a service, not keep tabs on us for the
government. And yet the companies that now have access to some of our
most private information refuse to reveal even the most basic facts
about their policies? We deserve better.
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